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[2020] ZALCJHB 7
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Moremi v Railway Safety Regulator SOE (JS562/19) [2020] ZALCJHB 7 (21 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 562/19
In the matter between:
MOREMI, MORIBULA
TYSON
Applicant
and
THE RAILWAY SAFETY
REGULATOR SOE
Respondent
Heard: 29 November
2019
Delivered:
21 January 2020
JUDGMENT
LALLIE, J
[1]
This is an application to enforce a contractual term contained in an
employment contract. The
applicant and the respondent entered into a
written contract of employment in terms of which the former was
employed as a security
officer with effect from October 2015. The
applicant’s job grade was level B2. In 2017 the respondent
embarked on a job evaluation
exercise which culminated in the
regrading of the applicant’s position from grade level B2 to
level B5. The applicant’s
remuneration should consequently have
been adjusted to R271 733 per annum with effect from 1 April 2019.
The outcome of the job
evaluation exercise was communicated to the
applicant by the respondent in writing in September 2017.
[2]
On 21 June 2018 the respondent informed the applicant in writing that
it would not
be implementing the salary adjustment in terms of the
outcome of the job regrading exercise. Aggrieved by the respondent’s
decision, the applicant referred a dispute to the Commission for
Conciliation, Mediation and Arbitration (the CCMA) alleging that
the
respondent’s refusal to increase his salary in terms of the
outcome of the job regrading exercise constituted an unfair
labour
practice. The CCMA issued an arbitration award dated 17 December 2018
in which it found that the respondent did not commit
an unfair labour
practice.
[3]
On 31 July 2019 the applicant filed a statement of claim in this
Court. The relief
the applicant seeks is an order compelling the
respondent to implement fully the remuneration adjustment contained
in the job evaluation
result and the adjustment of his salary in
accordance with the same result with effect from 1 April 2018.
Point in limine
[4]
The respondent disputed the applicant’s claim by filing a
response to the statement
of claim in which it raised a point in
limine
to the effect that the dispute before this Court is
re
judicata
. It submitted that this Court lacks jurisdiction to
adjudicate the dispute as the same issue has already been determined
by the
CCMA. The point in
limine
is opposed by the applicant,
mainly, on the grounds that the cause of action in the matter he
referred to the Labour Court is completely
different from the one in
the dispute which has been determined by the CCMA. The one at hand is
based on his contract of employment
and is justiciable in the Labour
Court and falls outside the jurisdiction of the CCMA.
[5]
For the respondent’s point in
limine
of
res
judicata
to be upheld the respondent was required to have proved that the
applicant is demanding the same relief he sought at the CCMA based
on
the same cause of action. The issue whether
res
judicata
may be successfully raised against an employee whose dispute has been
determined by the CCMA but approaches the Labour Court for
relief
based on his or her contract of employment is elucidated by the
Labour Appeal Court in
Jerry
Edward Archer v Public School Pinelands High School and Another
[1]
.
Although the Court in that matter was dealing with an unfair
dismissal dispute which had been determined by the CCMA and a
contractual
claim which had subsequently been referred to the Labour
Court the principles the Court dealt with are relevant to the matter
at
hand.
[6]
In
Kerry Edward Archer
the Court expressed the following view:
“
[16]
On application of these principles to the decision
on appeal, the appellant has both an unfair dismissal
claim and a
contractual claim arising from the termination of his employment
contract. This entitled him to pursue a claim in the
CCMA and an
independent contractual claim in either the High Court or the Labour
Court which have concurrent jurisdiction to determine
a contractual
claim in terms of section 77 of the BCEA which provides that the
“Labour Court has concurrent jurisdiction
with the civil courts
to hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition
of employment constitutes
a term of that contract”. The appellant elected to pursue his
contractual claim in the Labour Court.
In relation to this election,
the SCA in Makhanya observed as follows:
‘…
.[i]t
is true that a litigant who has a single claim that is enforceable in
two courts that have concurrent jurisdiction must necessarily
make an
election as to which court to use. In that respect the law
specifically allows for ‘forum shopping’ by allowing
the
litigant that choice. But it is altogether different when a litigant
has two distinct claims, one of which may only be enforced
in one
court, and the other of which may be enforced in another court, which
is how the court below applied it in this case.’
[7]
The Court expressed the application of
res judicata
in the
following words:
“
[18]
The upshot of this is that the appellant was not
precluded by the principle of res judicata from pursuing
his two
claims in different fora. This is because
the
claim that was before the Labour Court, and the one that was pursued
in the CCMA were not the same claims. The one is for payment
of
damages arising from a purported breach of contract by the first and
second respondents, and the other is for compensation arising
from an
unfair dismissal as envisaged under the LRA. The two claims do not
have the same cause of action. The pleadings bear this
out.”
[8]
It is common cause that both the dispute the applicant
referred to the CCMA and the one he referred
to the Labour Court are
based on the respondent’s refusal to pay his remuneration in
terms of the outcome of the job evaluation
exercise. It is further
common cause that the relief the applicant sought from the CCMA was
that the respondent’s refusal
to implement the outcome of the
job evaluation exercise constituted an unfair labour practice. The
applicant had a right to refer
the unfair labour practice dispute to
the CCMA in terms of section 191 of the Labour Relations Act
[2]
which did not preclude him from seeking relief at the Labour Court
based on his contract of employment in terms of section 77 of
the
Basic Conditions of Employment Act
[3]
.
[9]
An unfair labour practice claim is not the same as the claim based on
the contract of employment.
The former is justiciable at the CCMA and
the latter at the Labour Court. The applicant’s pleaded case is
based on the alleged
amendment of his contract of employment. The
respondent’s argument of the invalidity of the outcome of the
job evaluation
and regrading exercise and the denial that its refusal
to implement it did not constitute a breach of the contract of
employment
is of no relevance at this stage as the merits of the
applicant’s case are not taken into account in determining
whether
the respondent proved its point in
limine
of
res
judicata
.
[10]
The respondent has failed to prove that applicant’s claim if
founded on the same cause of action as
the unfair labour practice
dispute he referred to the CCMA. The point in
limine
can, in
the circumstance not succeed. The applicant did not seek a costs
order against the respondent.
[11]
In the premises, the following order is made:
Order:
1. The point in
limine
of
res judicata
is dismissed.
2. There is no order as
to costs.
_______
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Mr
David Morgan
For
the Respondent: Advocate
Ramolefe
Instructed
by: Madiba
Motsai Masitenyane & Githiri Attorneys Inc.
[1]
Unreported
judgment (case number CA12/18).
[2]
Act
66 of 1995, as amended
[3]
Act
75 of 1997